The War Against the Second Amendment Has Only Just Begun

In an interview with Jason Mattera which was conducted last month but is just now hitting the news, Democratic Congresswoman Jan Schakowsky admitted that the Democrats’ effort to ban “assault weapons” is “just the beginning.” In addition, Schakowsky says that she wants to ban all handguns, and thinks this can constitutionally be done, despite the Second Amendment. I think it is obvious that Schakowsky was only saying what a great many Democrats believe:

In a closely related development, a New York judge has thrown out Mayor Bloomberg’s decree against selling “sugary drinks” in New York City in containers larger than 16 ounces. The judge, Milton Tingling, held among other things that the ban was “arbitrary and capricious,” which is to say, irrational. He explained:

The petitioners state the decision to target only certain sugary sweetened drinks is nonsensical as a host of other drinks contain substantially more calories and sugar than the drinks targeted herein, including alcoholic beverages, lattes, milk shakes, frozen coffees, and a myriad of others too long to list here.

Note how closely this reasoning applies to the Democratic Party’s effort to ban “assault weapons,” certain randomly designated semi-automatic rifles which are identified by cosmetic features. Rifles (all rifles, not just semi-automatics) are the least popular method of committing murder; more people are beaten to death with bare hands, and five times as many are knifed. The singling out of “assault weapons,” defined by a seemingly random assemblage of insignificant features, is utterly arbitrary. Bear in mind, too, that there is a constitutional right to own and carry firearms, while there is no corresponding right to consume sugary beverages, so an assault weapons ban would be judged by a more stringent standard. Judge Tingling continued:

Petitioners also point out the exceptions to enforcement of the Rule whereby certain food service establishments are exempt from complying with this Rule. The effect would be a person is unable to buy a drink larger than 16 0z. at one establishment but may be able to buy it an another establishment that may be located right next door. Furthermore, no restrictions exist on refills further defeating the Rule’s stated purpose.

Note how the last point applies precisely to another of the Democrats’ favored schemes, banning all magazines that are average-sized or above. Instead of a single fifteen-round magazine, a murderer can simply use two eight-round magazines, just as a thirsty New Yorker can buy two 16-ounce sodas. Adopting legislation this stupid, Judge Tingling held, is so arbitrary and capricious as to be unconstitutional, even in the absence of a specific constitutional protection like the Second Amendment.

Another of the gun-banners’ favored ploys is a tax on ammunition:

Lawmakers looking to more tightly regulate firearms in the wake of the Newtown school shooting and other massacres are moving at the state and federal levels to introduce new taxes on firearms and ammunition.

The proposals range from the modest — a proposed 5 percent tax in New Jersey — to the steep — a proposed 50 percent ammo tax in Maryland. …
The taxes — much like so-called “sin taxes,” like those on cigarettes — serve a dual purpose. They can deter buyers, while using the extra revenue for favored programs. In this case, the sponsors want to direct the money toward mental health services, police training and victims’ treatment.

Of course, gun ownership is not a “sin,” it is a constitutionally protected right. Guns and ammunition can be subjected to a general sales tax that applies broadly to all or most products, but they cannot constitutionally be subjected to discriminatory taxes for the purpose of infringing Second Amendment rights. A good analogy is Minneapolis Star and Tribune Company v. Minnesota Commissioner of Revenue. In that case, in which my law firm represented the Star Tribune, the Supreme Court held that it violated the First Amendment for the State of Minnesota to impose a use tax on “the cost of paper and ink products consumed in the production of a publication.” The Star Tribune case is actually quite controversial, as a strong argument was made that the Minnesota tax didn’t really discriminate against newspapers. But even a whiff of disadvantageous treatment was enough to make the law unconstitutional. Firearms, like newspapers, are favored in the Constitution, and the Star Tribune case stands as very strong authority that any discriminatory tax on guns or ammunition would be struck down.

I draw two lessons from all of this. First, the battle over Americans’ Second Amendment rights has barely begun. Second, gun rights enjoy a solid foundation, as long as Barack Obama is not allowed to pack the Supreme Court with far-left judges.

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